Pathology expert witness wrongly-excluded in delayed diagnosis of cancer case


pathology expert witnessCase:

Christina Nicole Adams v. Laboratory Corporation of America, No. 13-10425, Eleventh Circuit U.S. Court of Appeals; July 29, 2014

Background:

Christina Adams received five Pap smear tests over the course of 32 months. Defendant Laboratory Corporation of America (LabCorp) reviewed the tests for abnormalities and subsequently reported none. Less than a year after her last test, Adams visited her doctor complaining of vaginal bleeding. At that time, she was diagnosed with cervical cancer that had metastasized in her lymph nodes.

Consequently, Adams and her husband sued LabCorp for negligence in failing to detect the abnormalities, which caused a delay in her diagnosis.

Pathology Expert Witness:

Adams presented pathology expert witness testimony from Dr. Dorothy Rosenthal regarding the alleged breach of LabCorp’s cytotechnologists’ standard of care.

Rosenthal has been a pathology professor at the Johns Hopkins School of Medicine since 1995 and served as Director of Cytopathology for the Johns Hopkins Medical Institutions from 1995 to 2003. She served on the initial task force that developed the Bethesda System terminology, which is the classification system that pathologists and cytotechnologists—including those working at LabCorp—use for reporting Pap smear results. Rosenthal also has more than 40 years of experience training cytotechs.

She based her opinion in this case on her own review of the slides sent to LabCorp.

The United States District Court for the Northern District of Georgia granted LabCorp’s motion to exclude her testimony, finding her methodology did not meet the reliability requirement of Federal Rule of Evidence 702.5. The court characterized her methodology as an ipse dixit assessment that could not be meaningfully reviewed by other experts. Furthermore, it insisted that she should have used a blinded review to evaluate Adams’ slides.

The District Court was concerned about the potential for bias. Additionally, Rosenthal’s methodology did not adequately simulate a cytotechnologist’s working conditions and circumstances.

Admissibility of Pathology Expert Witness:

Reviewing for abuse of discretion under Daubert v. Merrell Dow Pharmaceuticals, Inc. (509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 [1993]), the Eleventh Circuit U.S. Court of Appeals found the District Court’s conclusion was “manifestly erroneous.” Rosenthal did not make an ipse dixit assessment. Her opinion was based on a widely accepted methodology and grounded in the available physical evidence, the panel said. Therefore, she personally reviewed the available physical evidence, which consisted of the Pap smear slides. Additionally, she used the same standard microscope as LabCorp’s cytotechnologists, scanning each slide in the same general manner as its cytotechnologists do.

The fact that she applied an established diagnostic system in which she was well versed contributed to the reliability of her methodology, the panel said. Moreover, her experience training cytotechnologists and her knowledge of the risk of review bias made her well aware of the conditions and limitations of the LabCorp cytotechnologists’ review and of her own review of their work.

“It is difficult to imagine how Dr. Rosenthal’s experience could have been more extensive and relevant or contributed more to the reliability of the methodology she used,” the panel said.

In reference to the alleged bias, the panel said the District Court could have allowed the concerns to be presented to the jury.

Thus, the panel reversed the pathology expert witness’s exclusion and remanded for further proceedings.

About The Author

Kristin Casler is a legal writer and journalist who served as the editor for LexisNexis Mealey’s litigation news monitor for 17 years.